By nearly all accounts, the inquiry that ought to be the central concern during voir dire is whether the questioned venirepersons can be fair and impartial. Judicial rhetoric to the contrary, peremptory challenges do not further this goal. Nor were they ever intended to. Moreover, Batson and its progeny, have made a further muck of things by transforming voir dire into a lengthy ordeal involving inquires into inappropriate questions of race and ethnicity that not only have nothing to do with impartiality, but will also become increasingly muddled in the face of our changing society. ⁽¹⁾

Justice Marshall did not have a lot of faith in Batson's ability to detect and eradicate racial discrimination in the use of peremptory challenges. He believed peremptory challenges should be abolished:

The decision today[, Batson,] will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely. . . . The inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system.

Batson v. Kentucky, 476 U.S. 79, 102-103, 107 (1986)(Marshall, J., concurring). Time has proven Justice Marshall right, and today I register my agreement with the growing ranks of other jurists and commentators who have come to the same conclusion. See Minetos v. City University of New York, 925 F. Supp. 177, 183 & 185 (S.D.N.Y. 1996)(stating that "all peremptory challenges should now be banned as an unnecessary waste of time and an obvious corruption of the judicial process" and holding that "peremptory challenges per se violate equal protection"); Alen v. State, 596 So.2d 1083, 1086 (Fla. Dist. Ct. App. 1992)(Hubbart, J., concurring)("Rather than engage in a prolonged case-by-case strangulation of the peremptory challenge over a period of many years which in the end will effectively eviscerate the peremptory challenge or, at best, result in a convoluted and unpredictable system of jury selection enormously difficult to administer - I think the time has come, as Mr. Justice Marshall has urged, to abolish the peremptory challenge as inherently discriminatory"), app'd 616 So.2d 452 (Fla. 1993); People v. Hernandez, 552 N.E.2d 621, 625 (N.Y. 1990)(Titone, J., concurring)(". . . I suspect that rather than developing a complex set of judicially imposed limitations and standards, the most constructive course would be for the Legislature to take a hard look at the existing peremptory system with a view toward determining whether it is still viable"), aff'd 500 U.S. 352 (1991); Morris B. Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge's Perspective, 64 U. Chi. L. Rev. 809, 819, 848 (1997).

I had always assumed peremptory challenges were conceived as a necessary means to achieving an impartial jury. After all, the Supreme Court repeatedly refers to the indispensable function of peremptory challenges in this regard, and those assurances are echoed by most courts. ⁽²⁾ J.E.B. v. Alabama, 511 U.S. 127, 137 (1994)(noting that only legitimate interest in exercise of peremptory challenge is in securing fair and impartial jury); United States v. Martinez-Salazar, 528 U.S. 304, 310 (2000)("The peremptory challenge is part of our common-law heritage" and "[w]e have long recognized the role of the peremptory challenge in reinforcing a defendant's right to trial by an impartial jury"); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620 (1991)(sole purpose of peremptory challenge is to permit litigants to assist government in selection of impartial trier of fact); see also United States v. Harbin, 250 F.3d 532, 541 (7^th Cir. 2001) ("peremptory challenges are a significant means of achieving an impartial jury"). But there is really little logical or legal argument in support of the use of peremptory challenges as a means of securing an impartial jury. See n.2, supra. Perhaps this is because the peremptory challenge was never historically conceived as a component of jury impartiality.

At the time the jury system began to take root in English law, somewhere between 1220 and 1270, peremptory challenges first appeared in capital cases in response to two conditions: the Crown handpicked all prospective jurors and the Crown could exercise an unlimited number of peremptory challenges. Morris B. Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge's Perspective, supra at 819 & 848. The Crown's unlimited peremptory challenges were really challenges for cause which, due to the Crown's royal infallibility, were indisputable. In other words, the Crown, by virtue of its being the Crown, did not have to articulate a reason for the strikes. Id. at 845. To off-set these advantages, by 1300, most courts awarded criminal defendants thirty-five peremptory challenges in capital cases (at that time, nearly all felonies were punishable by death). Id. at 820-21. In practice, however, English criminal defendants rarely used any peremptories. ⁽³⁾ Over the years, the number of peremptory challenges given criminal defendants steadily decreased - from thirty-five to twenty in 1530, to seven in 1948, to three in 1977, and finally, to their elimination in 1989. Id. at 822. The Crown's peremptory challenge rights were taken away in 1305, and any other ability to exclude jurors for reasons other than for cause was abolished in 1989. ⁽⁴⁾ Thus, as originally conceived in English common law, peremptory challenges had nothing to do with juror impartiality. ⁽⁵⁾ Nor do I think they have much to do with jury impartiality today. ⁽⁶⁾

To the contrary, parties strategically utilize their peremptory challenges in an effort to select jurors that are as biased in their favor as possible. In order to eliminate jurors who are not likely to be biased in their favor and retain those who are, parties rely on group generalizations: ⁽⁷⁾

The good trial advocate starts with the proposition that the last thing he wants is a neutral, unbiased and unprejudiced jury. He wants, of course, the most biased and prejudiced jury he can possibly come up with, provided it is biased and prejudiced his way. This by no means suggests that the American criminal justice system does not seek neutral, unbiased and unprejudiced juries. It achieves the goal of an impartial jury, however, by the process of dynamic equilibrium. From the healthy clash of two skilled adversaries, each striving for the most partial jury obtainable in his direction, there emerges the synthesis of resultant impartiality. . . . As they engage in the educated guesswork of jury selection, each adversary tries to spot the probable prejudices coursing through the mainstream and the byways of American life - racial, religious, sexual, ethnic, educational, residential, economic, social - and then to maximize those running in his favor and to minimize those running against him. . . . The advocate recognizes, of course, that an individual member of a group does not necessarily share the group's characteristics but that there is nonetheless a more-than-random likelihood that that individual will. With available peremptory challenges, the trial advocate plays the law of averages.

Chew, 527 A.2d at 345 (emphasis added); see also Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, supra at 1093 ("[lawyers] have transformed jury selection from an exercise in selecting an impartial jury to an exercise in selecting a favorable jury . . ."); Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, supra at 203 ("[t]rial lawyers frequently observe that they use peremptory challenges, not to secure impartial juries, but to secure juries likely to favor their positions"). But while parties are utilizing their peremptory challenges as a vehicle for engaging in discrimination of every kind and against every conceivable group, group membership is becoming harder to identify.

Which brings us to another problem-that of group identification and classifying persons within groups. The majority's holding that "'race,' for purposes of Batson, encompasses notions of ancestral line and ethnicity" is correct. Majority opinion at 10. And I agree that using peremptory strikes against a person solely on account of that person's ethnicity is a violation of equal protection. But defining a cognizable racial/ethnic group or determining what racial/ethnic group a particular venireperson falls within may become such an ordeal as to be either absurd or nearly impossible. For example, the following discussion gives some hint of the types of problems associated with identifying a venireperson as "Hispanic" and with defining Hispanics as a cognizable group:

Acknowledging that the group they seek to identify shares no religious or physical characteristics, the majority bases its identification of "Hispanics" into ancestral characteristics, "often typified by surname," and language, "the common language being Spanish." There are major problems in transporting this definition into actual application

. . . In 1950 and 1960, the United States Census Bureau used a Spanish surname standard [but] [b]ecause of the inaccuracies in such a measure, the Census Bureau dropped that standard . . ..

[According to a Census Bureau study,] one-third of those who claim Hispanic origin do not have a Spanish-language surname. Furthermore, one-third of those who have Spanish-language surnames do not consider themselves Hispanics. The surname approach has an additional result of failing to account for "Hispanics" who either through marriage or adoption obtain an English surname. Similarly, surname classifications fail to consider "Hispanics" whose surnames are not commonly considered Spanish, whose surnames are a result of varied European ancestry, whose surnames have been Anglicized, or whose surnames are derived from other than Castillian Spain . . ..

The surname approach would also lead to classifying as "Hispanic" others who share the surnames and the language. Until 1968 and 1976, respectively, Spain governed Equatorial Guinea and Morocco, as well as other African settlements of Rio de Oro and Ifni. Although not the intended result, Africans from these settlements would be engulfed by this category. . . .

Conversely, many "Hispanics" do not speak Spanish. Many who do, speak variations of the language. . . . Many descendants of Spanish-speaking immigrants, no longer know how to speak Spanish. This lack of language would then deprive them of the protection of the cognizable class, while admitting questionable others . . .. Finally the majority refers to a common "native language being Spanish." However, with few exceptions, each of the countries from which today's "Hispanics" are derived, including Spain, were originally inhabited by indigenous tribes. The language of these indigenous tribes, is their "native language."

. . . The term "Hispanic" is far from being an accepted classification. . . . [T]he use of the term "Hispanic" is a governmentally contrived term:

"Hispanic" as an ethnic label is the product of a decision by the Office of Management and Budget (OMB) in 1978 to operationalize the label as "A person of Mexican, Perto Rican, Cuban, Central or South American or other Spanish culture of origin, regardless of race.

The OMB definition creates further applicational problems. By including South Americans, that definition also includes residents and descendants of Belize, Brazil, British and French Guayana. By including "other Spanish culture or origin," it includes Filipinos, and all other Spanish colonies, including those in Africa. In practice, the OMB definition does not include Spain, nor Spanish colonies in other continents, although Spaniards and their descendants are certainly of "Spanish culture or origin."

Another common label used to define this group is that of "Latins" or "Latinos". Without a doubt the label of "Latins" raises as many problems as "Hispanics." . . . The problem is not the label attached to the group. . . . The problem is that if the United States government, accomplished authors, statisticians, linguists, etc. have been unable to define what is a "Hispanic," with some precision and clarity, how is a trial judge to determine which juror can be stricken and which is protected?

Alen, 596 So.2d at 1093-1095 (Gersten, J., concurrning)(citations omitted)(emphasis added); see also Mejia v. State, 599 A.2d 1207, 1213 (Md. Ct. Spec. App.)(accepting the appellant's definition of "Hispanic" but referring to it as a "candidly amorphous and imprecise definition"), vacated, 616 A.2d 356 (1992). Another court viewed the prospect of making ethnic assessments particularly distasteful and inappropriate:

. . . we would be reduced, as rank ethnological amateurs, to playing guessing games based upon surnames, even as trial counsel and the trial judge, had they chosen to indulge, would have been reduced to such rankly amateurish speculation . . . If required to engage in such a game, however, one might conclude that the prosecution struck one woman, Ms. LaGrange, whose surname (or husband's surname) suggests a possible French, French-Canadian, or Cajun background; one man, Mr. Pakkianathan, whose surname suggests a possible Pakistani or Indian background; a second man, Mr. Estrada, whose surname suggests a possible European Spanish, European Portuguese, Hispanic, Brazilian, or Filipino background; and a third man, Mr. Lehman, whose surname suggests a possible German Jewish background. If Batson v. Kentucky were allowed to run amok, the prosecutor might be called upon, we suggest, to give a racially neutral, ethnically neutral, religiously neutral, and gender neutral explanation for any or all of these merely arguable possibilities."

Mejia, 599 A.2d at1212-13. The problem is compounded by the fact that while Batson's application will logically extend to virtually any identifiable group, at the same time, the make-up of our society is rapidly changing. People can no longer be classified as falling within identifiable groups of black or white. See id. at 1208 (moving from "bi-polar world of black and white into subtler grays, it becomes, as some predicted from the beginning, increasingly apparent that, at worst, we are irreversibly adrift on a slippery slope with no foreseeable stopping place short of the elimination of the peremptory challenge. At best, we are sentenced to at least a decade of playing a diverting ethnological parlor game called "Who is What and How Do We Know It?"); Alen, 596 So.2d at 1087 (Hubbart, J., concurring)(noting that in Dade County alone there are "many cognizable minority ethnic groups besides Hispanics: including Anglo Americans, Jewish Americans, native Americans, Arab Americans, and other European Americans" and observing that our country is a nation of immigrants, with the exception of the American Indian, and therefore "all Americans belong to some minority, ethnic/national origin group . . ..").

A final point that I would be remiss in failing to mention is the utter inability of Batson and its progeny to deal with the ease by which discriminatory intent may be masked in a "racially neutral explanation" and the virtually impossible task of uncovering pretext.

We are by now familiar with Batson's three step test required to prove race discrimination in the exercise of a peremptory challenge: (1) the opponent of a peremptory challenge must make out a prima facie case of racial discrimination; (2) the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation for the strike; and (3) the trial court must then decide whether the opponent of the strike has proved purposeful racial discrimination. Explaining step two, the Court in Batson stated that the prosecutor "must articulate a neutral explanation related to the particular case to be tried" and give a "clear and reasonably specific" explanation of his "legitimate reasons for exercising the challenges. Batson, 476 U.S. at 98 & n.20. But further expounding on step two in Purkett v. Elem, the Court said a prosecutor is not required to articulate "an explanation that is persuasive, or even plausible." 514 U.S. 765, 768 (1995)(emphasis added). What it had meant, the Court explained, by a "legitimate reason" was "not a reason that makes sense, but a reason that does not deny equal protection." ⁽⁸⁾ Id. at 769. But if a prosecutor's explanation for a peremptory strike does not have to make sense or even be plausible, how are trial courts to assess pretext? With great difficulty. To say that courts' attempts at applying Batson, and in particular, at assessing the existence of pretext, are "all over the map" is an understatement. ⁽⁹⁾ See Minetos, 925 F. Supp. at 183-84 & n.6.

Batson claims will inevitably grow in number, compelling hour upon hour of inquiry into venirepersons' ethnic backgrounds and heritage and further inquiry into the supposed thoughts and impulses of the proponent of the strike, issues that are irrelevant to juror impartiality. Moreover, peremptory challenges do not further the goal of an impartial jury, there is no historical rationale supporting their continued use and there is no constitutional right to them. The continued viability of peremptory challenges is not before this Court today. But I would

urge the legislature to take a serious look at this issue. ⁽¹⁰⁾ With these comments, I join the opinion of the Court.

Delivered September 12, 2001

Publish

1. In researching this issue, I was amazed by the number and variety of arguments advanced in support of abolishing peremptory challenges. Constitutional claims, statistical studies, historical and public policy arguments, have all been made. This opinion will touch on a couple of arguments that I have found thought-provoking, but these are by no means the only angles from which to consider this issue. The constitutionality of peremptory challenges is an issue worthy of considerable thought, although I was unable to devote the time and energy to it here. One commentator points out that even Chief Justice Burger at one point observed that peremptory challenges might not survive an equal protection analysis:

A clause that requires a minimum of "rationality" in government actions has no application to "an arbitrary and capricious right."

Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. Chi. L. Rev. 153, 202 (1989)(quoting Batson, 476 U.S. at 125 (Burger, J., dissenting)). As further articulated by this commentator, "The Equal Protection clause says in essence, 'When the government treats people differently, it has to have a reason.' The peremptory challenge says in essence, 'No, it doesn't.'" Id. at 203.

2. While at once espousing the invaluable service of peremptory challenges to ensuring a fair and impartial jury, the Supreme Court has unwaveringly maintained that peremptory challenges have no constitutional bearing and that the erroneous loss of a peremptory challenge is harmless. See Ross v. Oklahoma, 487 U.S. 81 (1988) (erroneous denial of defendant's challenge for cause resulting in loss of peremptory challenge in capital case did not violate constitutional right to impartial jury). This Court has previously observed that even discriminatory use of peremptory challenges does not logically affect the impartiality of the resultant jury: "The possibility of racial prejudice in the selection of the petit jury affects the adversarial presentation of the case not at all . . .if race is not an allowable "proxy" for bias [citation omitted] we can only conclude that an all white jury--whether it is the product of chance or of racial discrimination in the exercise of peremptory challenges--can nevertheless render a fair and impartial verdict in the trial of a minority defendant." Batiste v. State, 888 S.W.2d 9, 15 (Tex. Crim. App.1994)

3. "Even in modern times, when perceived abuses eventually led to the complete abolition of the peremptory challenge in England, its use, as late as 1979, had been described as no more frequent than one in seven trials, rarely with more than one peremptory challenge in a case." Morris B. Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge's Perspective, supra at 821; see also Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, supra at 165-66 (peremptory challenges were used so rarely in English history that some historians concluded they were unavailable). Peremptory challenges were abolished in England due to public perception that they were subject to abuse and corruption, despite the restrained use of them in English courts: "Perhaps nothing is more telling of the restrained manner in which the English have exercised the peremptory challenge than the fact that in the most publicized of these trials, the Cyprus spy trial, all seven defendants pooled their peremptory challenges and exercised a grand total of seven." Morris B. Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge's Perspective, supra at 822.

4. While Parliament outlawed the use of peremptory challenges by the Crown in 1305, the Crown circumvented this restriction by developing a procedure called "standing aside." By this practice, the Crown's prosecutors could ask any number of potential jurors to stand aside during the selection of the other jurors. Only if the number of jurors chosen were insufficient to constitute a jury after the parties exercised their challenges for cause, and the defendant exercised his peremptories, would those standing aside be recalled. Morris B. Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge's Perspective, supra 821-22. The Crown's standing aside rights were abolished in 1989.

5. It is also worth noting that juror impartiality was not a component of trials at the time peremptory challenges first appeared in the mid-thirteenth century. Morris B. Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge's Perspective, supra at 846. English jurors at that time were still trial witnesses, selected because of their connection to or knowledge of the case. Rather, as explained above, peremptory challenges arose as a reaction to the excesses of the crown, and some argue that these beginnings render the challenge without valid purpose today:

The fact that the peremptory challenge sprang to life as a corollary to the axiom of royal infallibility is terribly important . . . The ideas that the peremptory challenge is decidedly undemocratic, that it is susceptible to significant abuse by authorities, and that it is inherently irrational, all flow directly from the fact that the peremptory challenge is actually the lost heir of the divine right of kings. Something is fundamentally wrong with a jury selection system in which a lawyer can excuse perfectly qualified and objectively impartial jurors without offering any explanation. The something that is fundamentally wrong is that lawyers are no more infallible than kings. . . . When we cogitate today about what exactly the peremptory challenge has to do with juror impartiality, we should not be ashamed to say 'nothing.'

Id. at 846-47; see also Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, 73 Tex. L. Rev. 1041, 1094 (1995)("[t]he peremptory, which was once a device to exclude loyalists to the Crown, has been transformed into a mechanism for excluding prospective jurors based upon stereotypes").

6. It's not altogether clear why the peremptory challenge has achieved such prominence in this country. Some believe the American experience is due in no small part to the years surrounding the abolition of slavery, civil war and the Reconstruction. Morris B. Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge's Perspective, supra at 827-28. At the same time the peremptory challenge was fading from use in England, it was thriving in America as a means of excluding disfavored racial groups from jury service. And by all accounts, it was incredibly effective in this capacity. For instance, "When Mr. Swain, of Swain v. Alabama fame, was convicted by his all-white Talladaega County jury in the early 1960s, no black person had sat on any Talladega County trial jury, civil or criminal, in living memory." Morris B. Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge's Perspective, supra at 829. Problems persist. Justice Marshall noted in Batson that "[i]n 100 felony trials in Dallas County in 1983-1984, prosecutors peremptorily struck 405 of 467 eligible black jurors; the chance of a qualified black sitting on a jury was 1 in 10, compared to 1 in 2 for a white." Batson, 476 U.S. at 104 (Marshall, J., concurring)(citing Dallas Morning News (March 9, 1986)).

7. An extreme example of this approach to selecting jurors biased in favor of the State could be found in a pre-Batson prosecutors' manual:

You are not looking for a fair juror, but rather a strong, biased and sometimes hypocritical individual . . . You are not looking for any member of a minority group which may subject him to oppression - they almost always empathize with the accused. . . . Look for physical afflictions. These people usually sympathize with the accused. . . . I don't like women jurors because I can't trust them. They do, however, make the best jurors in cases involving crimes against children. . . . Extremely overweight people, especially women and young men, indicates a lack of self-discipline . . .. People from small towns and rural areas generally make good State's jurors. People from the east or west coasts often make bad jurors . . .. Intellectuals such as teachers, etc., generally are too liberal . . .. Hunters always make good State's jurors. . . . Jewish veniremen generally make poor State's jurors. Jews have a history of oppression and generally empathize with the accused. Lutherans and Church of Christ veniremen usually make good State's jurors.

Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, supra at 210-11 (quoting from same prosecutors' manual from which portions were quoted by Justice Marshall in his concurring opinion in Batson). Reliance on such stereotypes has not been confined to the State's side of the bar. Defense attorneys are just as likely to engage in the same kinds of stereotypical assumptions. It is highly unlikely, however, that since Batson, any adversary has transcribed such views to writing.

8. Justices Stevens and Breyer viewed Purkett's articulation of step two such a departure from the standard set out in Batson as to overrule that portion of Batson. Id. at 770 (Stevens, J., dissenting, joined by Breyer, J.).

9. In one demonstrative effort to deal with the problem, New York appellate judges drafted some guidelines to assist trial courts in applying Batson's second step. Minetos, 925 F. Supp. at 184. The guidelines listed certain reasons for striking jurors that could be presumed pretextual and other reasons that could be presumed as not pretextual. Id. But, as noted by a New York federal district court, "[o]f course, listing in this manner has the unfortunate effect of creating a how-to guide for defeating Batson challenges. Such guidelines do not ensure that juror strikes are not racially motivated - only that advocates are on notice of which reasons will best survive judicial review." Id. at 184-85; see also Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, supra at 1122 ("over time parties learn which reasons are acceptable and which are not and simply adjust their reasons accordingly, without necessarily abandoning the underlying stereotypes that might actually motivate the peremptory").

10. Some thinkers on this issue have suggested that elimination of peremptory challenges may call for some other modification to the system. The most commonly mentioned remedies are to make some expansion on challenges for cause, and/or requiring a less than unanimous verdict. See Alen, 596 So.2d at 1090 (Hubbart, J., concurring)(suggesting that "traditional grounds for a challenge for cause [could be expanded] so as to include any sound, strategic, nondiscriminatory reason why trial counsel might doubt a juror's impartiality or capacity to perform as a juror"); Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, supra at 207 (challenges for cause might be allowed where, even without a finding of partiality, a juror's ability or fairness nonetheless appeared in doubt, and Supreme Court has upheld the constitutionality of non-unanimous jury verdicts in state criminal cases - a procedure that denies idiosyncratic jurors the ability to frustrate the judgments of others.); Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Roles of the Jury, supra at 1103 (discussing expansion of challenge for cause grounds in event peremptory challenges were eliminated); Gordon Van Kessel, Adversary Excesses in the American Criminal Trial, 67 Notre Dame L. Rev. 403, 537-38 (1992) (elimination of peremptory challenge might require some reform such as relaxation of traditional unanimous verdict requirement - following English example, we could require ten to two verdict after two hours of deliberation).